Citation Nr: 1426324
Decision Date: 06/10/14 Archive Date: 06/16/14
DOCKET NO. 09-02 812 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Entitlement to service connection for a back disorder, based upon substitution of the appellant as the claimant.
2. Entitlement to a total disability evaluation for compensation based on individual unemployablity due to service-connected disabilities (TDIU) during the period prior to October 21, 2009, based upon substitution of the appellant as the claimant.
(The issue of entitlement to service connection for the cause of death is addressed in a separate appellate decision.)
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The Veteran served on active duty from September 1977 to September 1987 and from October 2003 to August 2005, to include service in the Southwest Asia Theatre of Operations. His death occurred in October 2011.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, based on claims initiated by the Veteran prior to his death. The appeal relating to those claims, as to only the issues identified on the title page of this document, remained pending at the time of the Veteran's death and it is noted that the Board by its November 2010 decision had remanded those same issues to the RO for further development. Pursuant to her request, the appellant was substituted for the Veteran as to those pending claims by RO action in March 2012. See 38 U.S.C. § 5121A, which was enacted on October 10, 2008, as part of the Veterans' Benefits Improvement Act of 2008, Public Law No. 110-389, § 212, 122 Stat. 4145, 4151.
This appeal entails a separate issue as to the appellant's entitlement to service connection for the cause of death, for which she is represented by an attorney. Inasmuch as the appellant remains unrepresented as to the issues identified on the title page of this document, the issue of service connection for the cause of death will be addressed in a separate appellate decision.
The issue of the entitlement of the Veteran's daughter, Brittany, to VA death benefits, including accrued benefits, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
The appellant in February 2012 requested a hearing before the RO's decision review officer (DRO) and such proceeding was thereafter scheduled to occur in July 2012. There is no indication within the record that the appellant withdrew her request for an RO hearing, nor is there a transcript of record relating to any DRO hearing conducted in July 2012. What is shown is the report of an informal conference between the appellant and DRO in July 2012, but nothing to indicate that the informal conference was elected in lieu of an actual hearing. While the Board notes that the substantive appeal filed in December 2012 indicates that no Board hearing was desired, the appellant's request for an RO hearing remains pending to this date and remand is required to afford the appellant her requested hearing.
Notice is taken that the appellant as the substituted claimant for the Veteran was initially represented in this matter by an attorney who previously had represented the Veteran. The appellant thereafter discharged that attorney and appointed a state veterans' organization to represent her in this appeal. There is also of record a power-of-attorney, received by VA in December 2012, appointing a separate attorney, J. Worman, as her representative, but that attorney indicated in accompanying correspondence that his representation of the appellant was for her claim for VA dependency and indemnity compensation. Further input from Attorney Worman is not shown. Moreover, the supplemental statement of the case of August 2013 as to the matters herein at issue indicates that the appellant remained unrepresented as to such matters and the only VA Form 8, Certification of Appeal, compiled since entry of the Board's November 2010 remand was for an issue not herein on appeal, that of the appellant's claim for service connection for the cause of death. On the basis of the foregoing, the Board finds that the record at this juncture indicates that the appellant is unrepresented as to the issues herein on appeal, pending further clarification on remand.
Also noted is the fact that certain documentary evidence involving medical records compiled by the service department following service separation was made a part of the Veteran's electronic claims folder in March 2013. Such records were received by the Records Management Center in St. Louis, Missouri, in January 2013 and transferred to the RO in St. Paul, Minnesota, in March 2013, but not referenced as having been considered in the supplemental statement of the case prepared by the Portland RO in August 2013. Here, the substantive appeal was received long prior to February 2013, and on the basis of the foregoing, remand for corrective action is deemed necessary. See 38 C.F.R. §§ 19.31, 19.37 (2013); see also Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, with preliminary interpretative guidance provided to the ROs via VBA Fast Letter 14-02 (evidence submitted by the appellant and/or representative where the substantive appeal is filed on or after February 2, 2013, may be considered without a waiver for initial RO review).
As well, notice is taken that many of the development actions sought by the Board through its November 2010 remand were not fully accomplished prior to the Veteran's death. The Board observes that substitution differs from a traditional accrued benefits claim in that additional evidence and argument may be added to the claims file following the death of the Veteran. VA also is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Cf. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000; see also VBA Fast Letter 10-30 (Aug. 10, 2010) (outlining new procedures for processing substitution claims). A new regulation has been proposed in this regard. See 76 Fed. Reg. 8,666-8,674 (February 15, 2011).
In this case, the appellant was advised by VA to submit information regarding the Veteran's treatment providers and a medical opinion was obtained regarding the TDIU claim, albeit without reference or apparent consideration of the Veteran's educational background. No review or opinion as to the nexus of claimed low back disablement to service or inservice low back injury was sought or obtained. On that basis, further actions are needed on remand to comply with the Board's remand directives of November 2010.
Accordingly, this matter is REMANDED for the following actions:
1. Contact the appellant in writing and ascertain whether she continues to desire a hearing before the RO's DRO as to the matters herein on appeal, and if she continues to seek a DRO hearing, arrange for its conduct.
2. Contact the appellant in writing for the purpose of determining whether she wishes to remain unrepresented as to the matters herein on appeal. If representation is desired, she should be asked to execute a power-of-attorney for representation by the attorney, organization, or agent of her choice. This should be followed by any and all indicated development to apprise any chosen representative of the procedural history of this case and afford the representative the opportunity to present evidence and/or argument.
3. Arrange for a VA review by a VA medical professional in order to determine the nature and etiology of the Veteran's low back disability on the basis of a review of the Veteran's claims folder. The paper and electronic claims folder should be made available to the VA reviewer.
Based on that review of the record, the VA reviewer should provide opinions with supporting rationales as to the following:
a) Is it at least as likely as not (50 percent probability or higher) that any low back disability of the Veteran had its onset in service or was otherwise related to service or any event thereof, including a fall from a ladder and injuries sustained in a mortar explosion during August 2004? The VA reviewer is asked to consider as credible the previously advanced account of inservice injuries involving the low back and symptoms related thereto.
b) Is it at least as likely as not (50 percent probability or higher) that arthritis of the lower back was present during the one-year period following each service discharge, the first of which occurred in September 1987, and the last in August 2005?
The VA reviewer is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as against. More likely and as likely support the proposition; less likely weighs against the claim.
4. Return the report of a VA disability benefits questionnaire prepared by L. Dykes, M.D., in February 2013 for the purpose of determining whether the Veteran was rendered unemployable solely on the basis of service-connected disabilities during the period prior to October 21, 2009, for the preparation of an addendum to her earlier report. The prior opinion made no reference to the Veteran's educational attainment and what impact, if any, that level of attainment would have in assessing whether he was unemployable during the time frame in question. The paper and electronic claims folder should be made available to Dr. Dykes or her designee for review prior to her re-evaluation of the record.
Based on that review of the record, the VA reviewer should provide an opinion with a full supporting rationale as to the following:
Is it at least as likely as not (50 percent probability or higher) that during any postservice period prior to October 21, 2009, the Veteran was unable to obtain or retain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders.
Dr. Dykes or her designee is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as against. More likely and as likely support the proposition; less likely weighs against the claim.
5. Thereafter, readjudicate the claims with consideration of all of the evidence of record, including but not limited to the medical records made a part of the electronic claims file in March 2013 but not considered in the decisional document of August 2013. If any benefit sought on appeal remains denied, the appellant should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.
No action by the appellant is needed until she receives further notice. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).